https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11850

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **CIVIL APPEAL NUMBER E695 OF 2024** **( CONSOLIDATED WITH CIVIL APPEAL NO. 689 OF 2024)** **SYNERGY DEVELOPMENT SYSTEMS LIMITED ------- APPELLANT** **VERSUS** **CHRISTINE MORAA OBEGI T/A TRIBEGI** **LIMITED --------------------------------------------------------- 1ST RESPONDENT** **JANE WAIRIMU CHEGE ---------------------------------- 2ND RESPONDENT** **JULIA NYOKABI CHEGE ------------------------------------3RD RESPONDENT** **LINDAN TRAVEL & TOURS LIMITED ---------------- 4TH RESPONDENT** **JUDGEMENT** 1. The Appellant challenges the lower court’s Ruling dated 27th May 2024 by which its Preliminary Objection to the Claim dated 14th April 2024 on the ground that the court lacks jurisdiction to entertain the claim, was dismissed. The Appellant had contended that the lower court as a Small Claims Court created under the **Small Claims Court Act** was bereft of jurisdiction to entertain the Claim. In particular, the Appellant protests that the claim was unlawfully split into two to tailor-make it to fit within the jurisdiction of the Small Claims Court. The 1st Respondent is also faulted for purporting to sue on behalf of a limited liability company that has the capacity to sue in its own name. 2. The Appeal is predicated upon 4 grounds as per Memorandum of Appeal Dated 5th June 2020, *to wit*; 3. **The Learned Adjudicator erred in law by failing to find that Statement of Claim offends the “Proper Plaintiff Rule” as the Claimant lacks locus standi to institute a suit on behalf of Tribegi Limited which is a registered company under the Companies Act, 2015 with the ability to sue and to be sued in its own capacity thereby arriving at an erroneous conclusion to wit the 1st Respondent has locus standi to sue on behalf of a registered company.** 4. **The Learned Adjudicator erred in law by failing to find that the Statement of Claim violates section 14 of the Small Claims Court Act which prohibits division of claims in parts solely for the purpose of bringing the sum claimed in each such proceedings within the jurisdiction of the Court.** 5. **The Learned Adjudicator erred in law by failing to find that the Small Claims Court lacks jurisdiction to hear and determine disputes relating to the tortious claim of fraud contrary to Section 12(1) (c) of the Small Claims Court Act which restricts the court’s jurisdiction in tort matters to cases involving “loss of damage caused to any property or for the delivery or recovery of movable property.”** 6. **The Learned Adjudictor erred in law by failing to consider all the grounds of objection raised in the Appellant’s Notice of Preliminary Objection hence arriving at an erroneous conclusion.** 7. The Appellant seeks these reliefs: 1. **The appeal be and is hereby allowed.** 2. **The Ruling of the trial court be and is hereby set aside.** 3. **Costs of the Appeal and the underlying suit be awarded to the Appellant.** **Background to the Appeal** 1. The 1st & 2nd Respondents T/A Tribegi Limited filed two statements of Claim before the Small Claims Court against the Appellant. In SCCCOM No. 2565 of 2024 the 1st Respondent sought refund of 990,000/= while in SCCCOM No. E 2564 of 2024 the 2nd Respondent also claimed a similar sum of Kshs.990,000/=. The claims arose from alleged breach of contract, the Appellant as well as the 3rd, 4th and 5th Respondents being accused of failing to facilitate the 1st Respondent to travel to the United States of America (USA) for a women conference despite making representation as to their ability to procure the 1st and 2nd Respondents’ travel. 2. The Appellant reacted by taking out the Preliminary Objection questioning the court's jurisdiction on the grounds that the 1st and 2nd Respondents could not in law sue in the name of a limited liability company and that they unlawfully split their claim to bring it within the jurisdiction of the Small Claims Court.. By Ruling delivered on 27/5/2020 the lower court dismissed the Objection holding that the 1st and 2nd Respondents individually filed their Claims that fall within the pecuniary jurisdiction of the Court and that the company (Tribegi Limited) only paid the charges on their behalf. **Appellant’s Submissions.** 1. The Appellant’s Advocates submit that the 1st & 2nd Respondents' documents confirm that Tribegi Limited is a limited liability company. The amounts they allegedly paid for their travel are also purported to have been made by the company. Counsel restate that a company is a separate legal entity, independent of its directors, (see Court of Appeal’s decision in **Amin Akberali Manji & 2 Others vs Altaf Abdulrasul Dadani & Another (2015) eKLR** and **Salomon vs Salomon Co. Ltd (1895-99) All ER 33 cited in reliance by Counsel.]** According to the Appellant, the 1st & 2nd Respondents did not therefore have *locus standi* to bring the Claims as held in similar circumstances in the case of **Daykio Plantations Ltd vs NBK Ltd & 2 Others (2019) eKLR)** also alluded to by Counsel**.** 2. **The Appellant’s Advocates** further make reference to **Section 14 of the Small Claims Court Act** which prohibits division of Claims in parts solely for the purpose of bringing them within the court’s pecuniary jurisdiction. The enactment provides**:-** **"No claim shall be divided or pursued in parts for the sole purpose of bringing the sum claimed in each of such proceedings within the jurisdiction of the court."** 1. The provisions **of Section 12(1) of the Small Claims Court Act** is further cited for the proposition thatthe court can only determine tortious claims relating to; **"loss or damage caused to any property or for the delivery or recovery of movable property."** 1. According to the Appellant, the court has no jurisdiction on tortious claims touching on fraud or misrepresentation and such Claims should be filed in a Civil Court. **Respondents’ Submissions.** 1. The 1st & 2nd Respondents counter through their Advocates that they are proper Claimants as they are the ones who personally entered into the contract with the Appellant together with the 3rd, 4th and 5th Respondents. The court is told that the 1st Respondent's documents clearly show that she is the Claimant and not Tribegi Limited. It is, however, conceded that the USA conference fees were paid through Tribegi Limited but the fact does not make it the Claimant. No prejudice was therefore caused to the Appellant, according to the 1st and 2nd Respondents. 2. Counsel submit that a Preliminary Objection cannot be founded on joinder or misjoinder of parties as the court *suo motu* or on application may substitute a party or strike out a party wrongly joined into proceedings. 3. In the opinion of the 1st and 2nd Respondents’ Advocates, splitting of claims only entails one Claimant splitting his claim into two against **Section 14 of the Small Claims Court Act** *supra***.** The court is told that this is not the case here as there are separate independent liquidated Claims based on breach of contract. 4. According to the 1st and 2nd Respondents, if their Claims were based on fraud they could have claimed general damages too. It is therefore submitted that the trial court rightly dismissed the Preliminary Objection since no proper points of law were advanced and only disputed matters of fact were raised. **Guiding Principles** 1. This being a first appeal the court is generally required to reconsider the material placed before the lower court, evaluate it and draw my own conclusions regarding both matters of fact and law{ (see **Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] EA 123**}. The Court of Appeal for East Africa in **Peters vs Sunday Post Limited [1958] EA 424** underscored the same principle delivering itself thus: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** ***ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** * + 1. ***It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** 1. Being an appeal from a decision of the Small Claims Court, however, this court is only required to consider arising matters of law only ( see **section 38 (1) of the Small Claims Court Act**). 2. There is no dispute that the two Claims arose from the same cause of action. The Appellant as well as the 3rd, 4th and 5th Respondents allegedly failed to facilitate the 1st and 2nd Respondents' travel to the USA in breach of contract. The Claims are brought in separate suits. It is contended that they gave false representation as to their ability/capacity to facilitate the travel. 3. It is also common ground that the 1st and 2nd Respondents sued in their names, but "T/A Tribegi Ltd". This is a limited liability company which in law can sue in its own name, independent of its directors. It is the company that paid the travel charges as per receipts filed in the lower court. 4. The main point for determination is whether the Appellant’s preliminary point was rightly dismissed. By purporting to sue trading as Tribegi Ltd, the 1st Respondent caused confusion. One cannot in law purport to sue through a limited liability company both as an individual and the company. That the requisite travel charges were also purportedly paid by the company reinforces the Appellant's contention that the 1st and 2nd Respondents wrongly brought this claim. 5. Besides, the 1st Respondent seeks to plead fraud and/or misrepresentation on the part of the Appellant together with the 3rd, 4th and 5th Respondents. **Section 12 (1) of the Small Claims Court Act** does not envisage trial of such a potentially complex suit by the Small Claims Court. While the 1st and 2nd Respondents were entitled to lodge separate claims as they did, the record shows that they were acting together and the said payments to the Appellant and the 3rd – 5th Respondents were made together. This was therefore substantially one claim which was irregularly split into two to make it fall within the Small Claim’s Court’s jurisdiction against the letter and spirit of **section 14 of the Small Claims Court Act.** I must therefore disagree with the trial court. 6. The Appeal is accordingly allowed. The lower court's Ruling and/or Order dismissing the Preliminary Objection is set aside and substituted with this court's Judgment upholding the Objection and consequently striking out the 1st and 2nd Respondents’ Claims. 7. Because of the business relationship the parties had entered into, they will bear their own costs of the Appeals. **J. M. NANG’EA, JUDGE.** **Judgment delivered virtually at Nakuru this 24th day July , 2026.** **In the presence of:-** **Mr Mwereru Advocate for the Appellant.** **Mr. Mulinge Advocate for Mr Mwara Advocate for the 1st and 2nd Respondents.** **Court Assistant (Jeniffer)** **J. M. NANG’EA, JUDGE.**